VILLAGE OF NASHVILLE
Councilmember Wheeler, seconded by Councilmember Wolff,
moved the adoption of the following ordinance:
AN ORDINANCE TO ADOPT ORDINANCE
NO. 3-13-2003, REGULATING THE USE OF VILLAGE RIGHTS-OF-WAY BY TELECOMMUNICATIONS PROVIDERS.
OF NASHVILLE ORDAINS:
The purposes of this ordinance are to regulate access to
and ongoing use of public rights-of-way by telecommunications providers for their telecommunications facilities while protecting
the public health, safety, and welfare and to exercise reasonable control of the public rights-of-way in compliance with the
Metropolitan Extension Telecommunications Rights-of-Way Oversight Act (Act No. 48 of the Public Acts of 2002) and other applicable
law, and to ensure that the Village qualifies for distributions under the Act by modifying the fees charged to providers and
complying with the Act.
Nothing in this ordinance shall be construed in such a manner as to conflict with the Act or other applicable
003. TERMS DEFINED.
The terms used in
this ordinance shall have the following meanings:
Act means the Metropolitan Extension Telecommunications Rights-of-way Oversight
Act (Act No. 48 of the Public Acts of 2002), as amended from time to time.
Village means the Village of Nashville.
Council means the Village Council of the Village of Nashville or its designee.
This section does not authorize delegation
of any decision or function that is required by law to be made by the Village Council.
Village Clerk means the Village
Clerk or her or his designee.
Permit means a nonexclusive permit issued pursuant to the Act and this ordinance
to a telecommunications provider to use the public rights-of-way in the Village for its telecommunications facilities.
All other terms used
in this ordinance shall have the same meaning as defined or as provided in the Act, including without limitation the following:
means the Metropolitan Extension Telecommunications Rights-of-Way Oversight Authority created pursuant to the Act.
the Michigan Public Service Commission in the Department of Consumer and industry Services, and shall have the same meaning
as the term “Commission” in the Act.
Person means an individual, corporation, partnership, association, governmental
entity, or any other legal entity.
Public Right-of-Way means the area on, below, or above a public roadway, highway,
street, alley, easement or waterway. Public right-of-way does not include a federal, state or private right-of-way.
Facilities or Facilities means the equipment or personal property, such as copper and fiber cables, lines, wires, switches,
conduits, pipes, and sheaths, which are used to or can generate, receive, transmit, carry, amplify, or provide telecommunication
services or signals. Telecommunication facilities or facilities do not include antennas, supporting structures for antennas,
equipment shelters or houses, and any ancillary equipment and miscellaneous hardware used to provide federally licensed commercial
mobile service as defined in Section 332(d) of Part I or Title III of the Communications act of 1934, Chapter 652, 48 Stat.
1064, 47 USC 332 and further defined as commercial mobile radio service in 47 CFR 20.3, and service provided by any wireless,
two-way communication device.
Telecommunications Provider, Provider and Telecommunications Services mean
those terms as defined in Section 102 of the Michigan Telecommunications Act, 1991 PA 179, MCL 484.2102. Telecommunication
provider does not include a person or an affiliate of that person when providing a federally licensed commercial mobile radio
service as defined in Section 332(d) of Part I of the Communications Act of 1934, Chapter 652, 48 Stat. 1064, 47 USC 332 and
further defined as commercial mobile radio service in 47 CFR 20.3, or service provided by any wireless, two-way communication
device. For the purpose of the Act and this ordinance only, a provider also included all of the following:
(a) A cable television
operator that provides a telecommunications service.
(b) Except as otherwise provided by the Act, a person who owns telecommunication facilities
located within a public right-of-way.
(c) A person providing broadband internet transport access service.
004. PERMIT REQUIRED.
(a) Permit Required.
Except as otherwise provided in the Act, a telecommunications provider using or seeking to use public rights-of-way in
the Village for its telecommunications facilities shall apply for an obtain a permit pursuant to this ordinance.
Application. Telecommunication providers shall apply for a permit on an application form
approved by the MPAC in accordance with the Act. A telecommunications
provider shall file
one copy of the application with the Village Clerk, one copy with the Village President, and one copy with
the Village Attorney. Applications shall be complete and include all information required by the Act, including without limitation
a route map showing the location of the provider’s existing and proposed facilities in accordance with the Act.
Information. If a telecommunications provider claims that any portion of the route maps submitted by it as part of its
application contain trade secret, proprietary, or confidential information, which is exempt from Michigan’s Freedom
of Information Act, Act No. 442 of the Public Acts of 1976, as amended, pursuant to Section 6(5) of the Act, the telecommunications
provider shall prominently so indicate on the face of each map.
(d) Application Fee. Except as otherwise provided by the
Act, an application shall be accompanied by a one-time nonrefundable application fee in the amount of $500.00.
Information. The Village Clerk may request an applicant to submit such additional information which the Village Clerk
deems reasonably necessary or relevant. The applicant shall comply with all such requests in compliance with reasonable deadlines
for such additional information established by the Village Clerk. If the Village and the applicant cannot agree on the requirement
of additional information requested by the Village, the Village or the applicant shall notify the MPSC as provided in Section
6(2) of the Act.
(f) Previously Issued Permits. Pursuant to Section 5(1) of the Act, authorizations or permits previously
issued by the Village under Section 251 of the Michigan Telecommunications Act, Act NO. 179 of the Public Acts of 1991, as
amended, and authorizations or permits issued by the Village to telecommunications providers prior to the 1995 enactment of
Section 251 of the Michigan Telecommunications Act but after 1985 shall satisfy the permit requirements of this ordinance.
Providers. Pursuant to Section 5(3) of the Act, within 180 days from November 1, 2002, the effective date of the Act,
a telecommunications provider with facilities located in a public right-of-way in the Village as of such date, that has not
previously obtained authorization or a permit under Section 251 of the Michigan Telecommunications Act, Act No. 179 of the
Public Acts of 1991, as amended, shall submit to the Village an application for a permit in accordance with the requirements
of this ordinance. Pursuant to Section 5(3) of the Act, a telecommunications provider submitting an application under this
subsection is not required to pay the $500.00 application fee required under subsection (d) above. A provider under this subsection
shall be given up to an additional 180 days to submit the permit application if allowed by the Authority for good cause, as
provided in Section 5(4) of the Act.
005. ISSUANCE OF PERMIT.
(a) Approval or Denial. The authority to approve or deny an application for a permit
is delegated to the Village Clerk. Pursuant to Section 15(3) of the Act, the Village Clerk shall approve
or deny an application for a permit within forty-five (45) days from the date a telecommunications provider files an application
for a permit in accordance with Section 004.(b) of this ordinance for access to a public right-of-way within the Village.
The Village Clerk shall notify the MPSC when the Village Clerk has granted or denied a permit, including information regarding
the date on which the application was filed and the date on which permit was granted or denied. The Village Clerk shall not
unreasonably deny an application for a permit.
(b) Form of Permit. If an application for permit is approved, the Village Clerk shall
issue the permit in the form approved by the MPSC, with or without additional or different permit terms, in accordance with
Secs. 6(1), 6(2) and 15 of the Act.
(c) Conditions. Pursuant to Section 15(4) of the Act, the Village Clerk may impose
conditions on the issuance of a permit, which conditions shall be limited to the telecommunications provider’s access
and use of the public right-of-way.
(d) Bond Requirement. Pursuant to Section 15(3) of the Act, and without limitation
on subsection (c) above, the Village Clerk may require that a bond be posted by the telecommunications provider as a condition
of the permit. If a bond is required, it shall not exceed the reasonable cost to ensure that the public right-of-way is returned
to its original condition during and after the telecommunications provider’s access and use.
006. CONSTRUCTION/ENGINNEERING PERMIT.
provider shall not commence construction upon, over, across, or under the public rights-of-way in the Village without first
obtaining a construction or engineering permit as required by law, for construction within the public rights-of-way. No fee
shall be charged for such a construction or engineering permit.
007. CONDUIT OR UTILITY POLES.
In accordance with the Act, obtaining a
permit or paying the fees required under the Act or under this ordinance does not give a telecommunications provider a right
to use conduit or utility poles.
008. ROUTE MAPS.
Pursuant to Section 6(7) of the Act, a telecommunications provider shall, within 90 days after
the substantial completion of construction of new telecommunications facilities in the Village, submit route maps showing
the location of the telecommunications facilities to both the MPSC and to the Village. The route maps should be in paper format
unless and until the MPSC determines otherwise, in accordance with Section 6(8) of the Act.
009. REPAIR OF DAMAGE.
provider undertaking an excavation or construction or installing telecommunications facilities within a public right-of-way
or temporarily obstructing a public right-of-way in the Village, as authorized by a permit, shall promptly repair all damage
done to the street surface and all installations under, over, below, or within the public right-or-way and shall promptly
restore the public right-of-way to its preexisting condition.
010. ESTABLISHMENT AND PAYMENT OF MAINTENANCE FEE.
In addition to the non-refundable application fee paid to the Village
set forth in Section 004(d) above, a telecommunications provider with telecommunications facilities in the Village’s
public rights-of-way shall pay an annual maintenance fee to the Authority pursuant to Section 8 of the Act.
011. MODIFICATION OF EXISTING FEES.
In compliance with the requirements of Section 13(1)
of the Act, the Village hereby modifies, to the extent necessary, fees charged to telecommunications providers after November
1, 2002, the effective date of the Act, relating to access and use of the public rights-of-way, to an amount not exceeding
the amounts of fees and charges required under the Act, which shall be paid to the Authority. In compliance with the requirements
of Section 13(4) of the Act, the Village also hereby approves modification of the fees of providers with telecommunication
facilities in public rights-of-way within the Village’s boundaries, so that those providers pay only those fees required
under the Section 8 of the Act. The Village shall provide each telecommunications provider affected by the fee a copy of this
ordinance, in compliance with the requirement of Section 13(4) of the Act. To the extent any fees are charged telecommunications
providers in excess of the amounts permitted under the Act, or which are otherwise inconsistent with the Act, such imposition
is hereby declared to be contrary to the Village’s policy and intent, and upon application by a provider or discovery
by the Village, shall be promptly refunded as having been charged in error.
012. SAVINGS CLAUSE.
to Section 13(5) of the Act, if Section 8 of the Act is found to be invalid or unconstitutional, the modification of fees
under Section 011. above shall be void from the date the modification was made.
013. USE OF FUNDS.
Section 10(4) of the Act, all amounts received by the Village from the Authority shall be used by the Village solely for rights-of-way
related purposes. In conformance with that requirement, all funds received by the Village from the Authority shall be deposited
into the Major Street Fund and/or the Local Street Fund maintained by the Village under Act NO. 51 of the Public Acts of 1951.
014. ANNUAL REPORT.
Pursuant to Section 10(5) of the Act, the Village Clerk shall file
an annual report with the Authority on the use and disposition of funds annually distributed by the Authority.
015. CABLE TELEVISION OPERATORS.
Pursuant to Section 13(6) of the Act, the Village shall
not hold a cable television operator in default or seek any remedy for its failure to satisfy an obligation, if any, to pay
after November 1, 2002, the effective date of this Act, a franchise fee or similar fee on that portion of gross revenues from
charges the cable operator received for cable modem services provided through broadband internet transport access services.
016. EXISTING RIGHTS.
Pursuant to Section 4(2) of the Act, except as expressly provided
herein with respect to fees, this ordinance shall not affect any existing rights that a telecommunications provider or the
Village may have under a permit issued by the Village or under a contract between the Village and a telecommunications provider
related to the use of the public rights-of-way.
The Village declares that its policy and intent in adopting
this ordinance is to fully comply with the requirements of the Act, and the provisions of this ordinance should be construed
in such a manner as to achieve that purpose. The Village shall comply in all respects with the requirements of the Act, including
but not limited to the following:
certain route maps from disclosure consistent with the Act and state law as provided in Section 004(c) of this ordinance;
(b) Allowing certain previously issued permits to satisfy
the permit requirements hereof, in accordance with Section 004(f) of this ordinance;
(c) Approving or denying an application for a permit within forty-five (45) days from the
date a telecommunications provider files an application for a permit for access to and usage of a public right-of-way within
the Village, in accordance with Section 005(a) of this ordinance;
(d) Notifying the MPSC when the Village has granted or denied a permit, in accordance with Section 005(a) of this
(e) Not unreasonably denying an application
for a permit, in accordance with Section 005(a) of this ordinance:
(f) Issuing a permit in the form approved by the MPSC, with or without additional or different permit terms, as provided
in Section 005(b) of this ordinance;
the conditions imposed on the issuance of a permit to the telecommunications provider’s access and use of the public
right-of-way, in accordance with Section 005(c) of this ordinance;
(h) Not requiring a bond of a telecommunications provider which exceeds the reasonable cost to ensure that the public
right-of-way is returned to its original condition during and after the telecommunication provider’s access and use,
in accordance with Section 005(d) of this ordinance;
Not charging any telecommunications providers any additional fees for construction or engineering permits, in accordance with
Section 006 of this ordinance;
(j) Providing each telecommunications
provider affected by the Village’s right-of-way fees with
a copy of this ordinance, in accordance with Section 011 of this ordinance;
(k) Submitting an annual report to the Authority, in accordance with Section 014 of this ordinance;
(l) Not holding a cable television operator in default
for a failure to pay certain franchise fees, in accordance with Section 015 of this ordinance.
018. RESERVATION OF POLICE POWERS.
Pursuant to Section 15(2) of the Act, this ordinance shall not limit the Village’s right
to review and approve a telecommunication provider’s access to and ongoing use of a public right-of-way or limit the
Village’s authority to ensure and protect the health, safety, and welfare of the public.
The various parts, sentences, paragraphs, sections, and clauses of this ordinance are hereby declared
to be severable. If any part, sentence, paragraph, section, or clause of this ordinance is adjudged unconstitutional or invalid
by a court or administrative agency of competent jurisdiction, the unconstitutionality or invalidity shall not affect the
constitutionality or validity of any remaining provisions of this ordinance.
020. AUTHORIZED VILLAGE OFFICIALS.
The Village Clerk is hereby designated as the authorized Village official to issue municipal civil infraction
citations (directing alleged violators to appear in court) or municipal civil infraction violation notices (directing alleged
violators to appear at the municipal violations bureau) for violations under this ordinance as provided by the Village Code.
021. MUNICIPAL CIVIL INFRACTION.
A person who violates any provision of this ordinance
or the terms or conditions of a permit is responsible for a separate municipal civil infraction, and shall be subject to civil
infraction costs in addition to fines as follows: for the first offense $500.00, for a second or subsequent offense $1,000.00.
Nothing in this Section 021 shall be construed to limit the remedies available to the Village in the event of a violation
by a person of this ordinance or a permit.
and portions of ordinance inconsistent with this ordinance are hereby repealed.
023. EFFECTIVE DATE.
ordinance shall take effect following its publications on March 18, 2003.
YEAS: Kirk Coll, Wolff, Sheldon, Edinger, Wheeler, Dunham.
NO. 3-13-03 DECLARED ADOPTED